Citation NR: 9733858
Decision Date: 10/03/97 Archive Date: 10/09/97
DOCKET NO. 96-07 667 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in New
Orleans, Louisiana
THE ISSUE
Entitlement to an effective date earlier than May 27, 1994,
for the grant of a permanent and total disability evaluation
for pension purposes.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Charles G. Sener, Associate Counsel
INTRODUCTION
The appellant had active service from June 1970 to April
1972.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a December 1994 rating decision of the
Department of Veterans Affairs (VA) New Orleans, Louisiana,
Regional Office (RO), which awarded a awarded a permanent and
total disability evaluation for pension purposes, effective
from May 27, 1994.
REMAND
The appellant contends that an effective date earlier than
May 27, 1994, for the award of a total disability evaluation
for pension purposes is warranted. The appellant filed a
claim seeking VA benefits in March 1992. See VA Form (VAF)
21-526, “Application for Compensation and Pension,” received
on March 20, 1992. He avers that when he filed his claim in
March 1992 that he believed that he was filing for all
benefits which he may have been entitled to receive,
including pension benefits. Therefore, the appellant and his
representative maintain that his claim for pension benefits
was received on March 20, 1992, and not May 27, 1994, when
his VAF 21-527, “Income-Net Worth and Employment Statement,”
was received. In support of this contention, the appellant’s
representative, in March 1996, cited to the United States
Court of Veterans Appeals’ holding in Douglas v. Derwinski,
2 Vet.App. 435 (1992), for the proposition that VA is
obligated to consider all the evidence of record and all
pertinent legal theories in support of the claimant’s
possible entitlement, and even to award benefits for issues
not specifically identified by the claimant. The Board notes
that the RO has not considered the representative’s argument.
Initially, the Board recognizes that 38 C.F.R. § 3.151 (1996)
indicates that a claim for compensation may also be
considered a claim for pension; in Akles v. Derwinski,
1 Vet.App. 118, 121 (1991), the United States Court of
Veterans Appeals (Court) held that it was “[t]he Secretary’s
obligation to ensure that each veteran is informed of all
benefits to which he is entitled [since that] is in keeping
with the essence of the VA system, which allows veterans to
pursue their claims in a non-adversarial setting.”
Furthermore, a veteran is not required to specifically
mention “unemployability” in order to constitute a claim for
individual unemployability. Servello v. Derwinski,
3 Vet.App. 196 (1992). And both a claim for a total
disability evaluation based upon individual unemployability
as well as a claim for pension, where a veteran had served
greater than 90 days during a period of war, were reasonably
raised by the veteran’s assertion that he could no longer
seek or maintain employment. Stanton v. Brown, 5 Vet.App.
563, 570-71 (1993).
As stated above, the RO essentially denied the appellant’s
claim for an earlier effective date for the award of pension
benefits because the appellant’s VAF 21-527, “Income-Net
Worth and Employment Statement,” was not received until May
1994. It was also indicated in a January 1996 statement of
the case that the appellant had not completed the income
portion of the March 1992 VAF 21-526, “Application for
Compensation and Pension,” items 34A through 39B, which
should have been completed if he had been specifically
applying for nonservice-connected pension. Thus, the RO
merely adjudicated the appellant’s claim as a compensation
claim seeking service connection for a back disorder, which
was denied in August 1992. Notwithstanding, the RO failed to
consider the fact that by furnishing information in items 29A
through 31E, under the heading “IF YOU CLAIM TO BE TOTALLY
DISABLED (complete Items 29A through 32 E),” the appellant
was claiming to be totally disabled. He indicated that he
was not employed and had last worked in February 1991.
The appellant’s March 1992 VAF 21-526, “Application for
Compensation and Pension,” did not contain all the necessary
information needed to enable the RO to adjudicate a claim for
pension benefits. However, as discussed above, the appellant
did indicate that he had become too disabled to work as a
result of a back condition beginning in February 1991.
Therefore, the issue of a total disability evaluation for
pension purposes was reasonably raised on March 20, 1992, the
date of receipt of the VAF 21-526, “Application for
Compensation and Pension.” 38 C.F.R. § 3.151 (1996);
Akles v. Derwinski, 1 Vet.App. 118, 121 (1991); Servello v.
Derwinski, 3 Vet.App. 196 (1992); Stanton v. Brown,
5 Vet.App. 563, 570-71 (1993).
The governing statutory and regulatory provisions explicitly
stipulate that an award of disability pension may not be
effective prior to the date entitlement arose, i.e., the date
it is determined that the appellant became permanently and
totally disabled for pension purposes. 38 U.S.C.A. § 5110
(West 1991 & Supp. 1996); 38 C.F.R. § 3.400(b)(1) (1996).
For pension claims received on or after October 1, 1984, the
effective date for the award of a permanent and total
disability evaluation for pension purposes is the date of
receipt of the claim unless the veteran files a claim for a
retroactive award within one year from the date on which he
became permanently and totally disabled and establishes that
the disability, which was not the result of willful
misconduct, was so incapacitating that it prevented him from
filing a disability pension claim for at least 30 days
immediately following the date on which the veteran became
permanently and totally disabled. In that case, the
effective date will be the date of receipt of the claim or
the date the veteran became permanently and totally disabled,
whichever is most advantageous to the veteran. 38 C.F.R.
§ 3.400(b)(1)(ii) (1996).
The effective date for an award of pension benefits is
normally the date of receipt of the claim, with the
exceptions noted above under 38 C.F.R. § 3.400b(1)(ii), but
the pension award “may not be effective prior to the date
entitlement arose.” See 38 C.F.R. § 3.400b(1) (1996). The
Board concludes that the RO received the appellant’s claim
for pension on March 20, 1992; however, review of the claims
file reveals that the RO has never determined when
entitlement to pension benefits actually arose. The date
that the appellant became permanently and totally disabled
would be the date entitlement to pension benefits arose;
obviously, that date is relevant to the determination of an
effective date for the award of pension benefits. In light of
the foregoing, the Board is loathe to consider further the
issue on appeal until the agency of original jurisdiction
determines when in fact the appellant became permanently and
totally disabled for pension purposes, as this date possibly
could be later than the date of receipt of the claim.
Therefore, in order to ensure that the appellant receives his
due process rights, the case is REMANDED to the RO for the
following action:
The RO should undertake all development
required in order to ascertain when the
appellant became permanently and totally
disabled for pension purposes.
Recognizing that the appellant’s pension
claim was filed on March 20, 1992, the RO
should then readjudicate the appellant’s
claim of entitlement to an earlier
effective date for the grant of a
permanent and total disability evaluation
for pension purposes in accordance with
the provisions of 38 C.F.R.
§ 3.400(b)(1)(ii) (1996), listed above.
If the benefit sought on appeal remains denied, a
supplemental statement of the case, including a summary of
the applicable laws and regulations with appropriate
citations and a discussion of the evidence, should be
furnished to the appellant and his representative. They
should be afforded a reasonable period of time to respond.
Thereafter, the case should be returned to the Board for
further appellate consideration.
The purpose of this REMAND is to ensure that the appellant
receives his procedural due process rights. No opinion,
either legal or factual, is intimated as to the merits of the
appellant's claim by this REMAND. He is not required to
undertake any additional action until he receives further
notification from VA. However, while this case is in REMAND
status, the appellant is free to submit additional evidence
and argument on the question at issue. Quarles v. Derwinski,
3 Vet.App. 129, 141 (1992).
(CONTINUED ON NEXT PAGE)
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1997) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the RO to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
JACK W. BLASINGAME
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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